Certainty: Canada's Struggle To Extinguish Aboriginal Title

UBCIC, 1998

Our connection to the Land is Sacred, it defines who we are as Peoples, it is our Aboriginal Title. Our laws and teachings bid us to honour and protect our connection to the Land. In the roots which bind our Peoples to the Land there is a life and a future for our Peoples.

Canada cannot understand our Sacred connection to the Land, our Aboriginal Title. It is "uncertain," because it prevents Indigenous Peoples from viewing the Land as a commodity to be bought, sold or traded. From Canada’s perspective, our Aboriginal Title has to be changed, altered, and defined in a treaty so that it fits with Canadian laws and ideas about Land.

Canada’s strive for certainty reflects a desire that Indigenous Peoples assimilate into Canada, that we sever our connection to the Land. Canada asks that we dig up the roots connecting us to the Land and replant them through treaties. This lack of understanding and fear about our connection to the Land is what Canada strives to address through certainty.

For Indigenous Peoples, our Aboriginal Title and connection to the Land is certain, it is in the bones of our grandmothers buried in the earth, and in the blood which beats in our hearts:

Our Sacred connection to the Land is certain.

Our relationship with the Land, our Title, rests over every square inch of our traditional territories: Every rock, mountain top, stream, valley and tidal swell. This is certain.

Indigenous Peoples have the jurisdiction and responsibility to protect, access and use the Land and resources upon the Land for the benefit of our Peoples. This is certain.

Our own traditional laws and teachings grant us this certainty: As long as we maintain our Sacred connection to the Land we will continue to exist as Peoples.

Canada and B.C. have said that the purpose of treaties or modern land claims agreements is to achieve "certainty". This booklet discusses the certainty provisions that have been suggested. In particular, a confidential document, "Certainty Summary", which was drafted by the province.

The Certainty Summary gives a fairly clear indication of the certainty language Canada and the province will insist upon having in any treaties or land claims agreements they negotiate.

The purpose of "certainty" on the part of the federal and provincial governments is to "exhaustively and completely set forth" all aboriginal and treaty rights. Rather than simply accepting the existence of Aboriginal Title as ownership and jurisdiction over Land and resources, certainty limits and defines Aboriginal Title and Rights.

Aboriginal Title to lands and resources existed at the time that the Crown asserted sovereignty. This Title was never extinguished. This is why Crown title is uncertain and remains subject to Aboriginal Title.

There is an air of illegality about any transactions which the Crown makes or authorizes with respect to Lands and Resources. These transactions do not acknowledge that Indigenous Peoples own the Lands, and therefore violate the legal principle that "You cannot give that which you do not own."

The Crown's willingness to negotiate land claims requires a promise on the part of Indigenous Peoples that they will not fully practice their rights. Canada's negotiating stance is: "We will recognize your rights, but only if you first tell us how you will exercise them, and only if you promise that your rights will not interfere with our interests." This is certainty.

Canada's sovereignty or ownership of Land and resources is not challenged, Canada does not have to "prove" its title. Indigenous Peoples do not get an equal promise that Canada will tell us how they will practice their rights, or that their rights will not interfere with our interests. Quite the opposite.

A modern land claim agreement is a contract between Indigenous People, Canada and the Province. Each party gives something in exchange for something. In order to gain "certainty" Canada and the Province are willing to grant a limited recognition of aboriginal title to a reduced portion of an Indigenous group's traditional territory, in exchange for the release of all aboriginal title and rights not specifically set out in the Agreement.

Convert, Modify and Transform

The intent of the parties in achieving certainty is evident in the language proposed. Instead of the traditional "extinguishment" language (which used such phrases as "cede, release and surrender") the language of treaties will be finessed so that it is not so blunt. Aboriginal title and rights will not be extinguished outright; Instead, they will be defined and limited out of existence. Achieving certainty will require that Aboriginal Title and Rights be "converted/modified/transformed/etc." into treaty rights set forth in the Agreement.

Compare these definitions of the words used, all from Webster's dictionary:

Extinguish, definitions include

1. "to bring to an end: to make an end of";

2. "to reduce to silence or ineffectiveness";

3. "to cause to be void: NULLIFY"; and

4. "to get rid of usually by payment."

Convert, definitions include

1. "to bring over from one belief, view, or party to another";

2. "to change from one form or function to another";

3. "to alter for more effective utilization"; and

4. "to appropriate without right."

Modify, definitions include

1. "to make less extreme: MODERATE";

2. "to limit or restrict the meaning of...and";

3. "to make basic or fundamental changes in often to give new orientation to or to serve a new end"

Transform, definitions include

1. "to change in composition and structure"; and

2. "to change in character or condition: CONVERT."

Certainty provisions will change all rights which aboriginal peoples have into contractual rights which have been reduced to writing, limited and defined. The impact of the proposed certainty provisions is to capture and tame aboriginal title and rights, and then place them in a cage constructed of words and legal provisions.

Certainty involves the re-definition and re-creation of aboriginal rights. This is done through clauses which

convert and reduce all existing aboriginal or title rights of Indigenous Peoples' into those contained within the Agreement;

ensure that the Agreement will be the "full and final settlement" of all aboriginal title or rights;

release all rights not listed in the Agreement to Canada; and

exhaustively set forth all the Section 35 rights of the Indigenous group, including the manner of their exercise, and all the limitations to those rights on which the Parties have agreed.

There will be no aboriginal title or rights which survive their exclusion from the written Agreement. All aboriginal rights and title will be transformed to those of contractual or treaty-rights. Any stray rights which are not listed (for example, because of oversight, or because they were not thought of at the time of the Treaty) will not survive their exclusion from the Agreement. This means that if Canadian courts recognize new rights in the future (for example, a right to water or a commercial interest in wildlife) Indigenous groups who treaty will not be able to benefit from these rights.

Land claims agreements will be the Noah's Arc of Aboriginal Rights: Any title or rights not on the arc and nailed down with words in the Agreement, at the time of the treaty will not survive. Aboriginal title and rights flow from the land and the historic relationship that Indigenous Peoples have had with our Lands. The legal language proposed for certainty will flood the land with Crown title and forever dam the flow of rights from the Land to the people. Crown title will replace aboriginal title. No title or rights will ever flow from the Land again. Instead, all rights will flow from the written Agreement.

Modern land claims agreements will create a double standard in which the interests of the federal and provincial Crowns and third parties are recognized. These rights will simply continue to exist, they will change and adapt over time, they will continue to live. There is no provision which releases all undefined rights or interests of Canada, B.C. or third parties to the Indigenous group. The rights of the Indigenous Peoples', on the other hand, will be frozen and will not grow and adapt. If these rights are not written into the Agreement, they will no longer exist, they will be dead.

This is an example of how double standards will be cemented in modern land claims agreements. Crown title is perfected and recognized over all Lands, while Indigenous Title is extinguished from all areas not in the agreement.

These agreements are not fair or equal: there is no sharing. The Crown gets complete recognition of its sovereignty, its underlying title to our lands and the supremacy of its laws over our governments and People. Indigenous groups get limited recognition of title to reduced pieces of land, the right to co-manage resources (along with government and third parties interests) and self-government which is subject to Canadian and provincial laws.

Land claims agreements will explicitly contain recognition of all "third party" interests and that these are not impacted by aboriginal rights.

Interpretation: A different species of Section 35 rights

Although modern land claims will be acknowledged as treaty rights under Section 35 of the Constitution Act, 1982 which "recognizes and affirms" existing aboriginal and treaty rights, they will be a different species of Section 35 right. The benefit of having rights recognized under Section 35 is that Canadian Courts have read Section 35 to protect Aboriginal peoples and their rights.

At present, under Section 35, courts interpret treaties so that

ambiguous expressions in treaties are resolved in favour of the Indians;

treaty provisions are given a fair, liberal and large interpretation;

the honour of the Crown is assumed when interpreting treaties (Courts assume that the Crown intended to act honourably toward aboriginal peoples and with the best interests of the aboriginal peoples in mind, while entering treaties); and

any suggestion of "sharp dealing" (unfair bargaining) is not sanctioned.

These principles of interpretation will be removed from modern treaties and therefore the protective features of Section 35 will not operate. Any common law rules with respect to aboriginal or treaty rights will be replaced by the provisions of the Agreement and it is anticipated that the federal government will need to pass legislation in order to override the common law rules.

Provisions in the new treaties which will remove common law protection may include:

There will be no presumption that doubtful or ambiguous expressions or terms are to be interpreted in favour of any particular Party or Parties.

The Indigenous group will agree that the Crown has no consultation obligations respecting the Section 35 rights of the Indigenous group other than those obligations set out in the Treaty.

The Section 35 rights set out in the Treaty will be interpreted solely on the basis of the rights set out in the treaty, without any distinction based on whether the right is a [converted/modified/transformed/etc.] aboriginal right or a new treaty right.

Any common law rules which arise from aboriginal rights cases which impose a duty on the Crown to treat aboriginal rights in a certain way, will not apply if they are not set out in the Agreement. In Delgamuukw the Supreme Court suggested that the consent of the aboriginal peoples with title would be required before certain actions or measures could be taken if these actions would have the impact of interfering with aboriginal title and the traditional uses to which the Indigenous Peoples have put their lands.

The consent of an aboriginal group to actions regarding lands over which they have aboriginal title will not apply to the new treaties unless this is specifically set out in the agreement. And, in any case, the consent, or even involvement, of the aboriginal group will only apply to those specific tracts of lands identified in the Agreement. Under Delgamuukw, consultation, compensation and, possibly consent, are required for all lands which comprise the traditional territory and title lands of the Indigenous Peoples.

Although the rights recognized under the Agreement will be called Section 35 treaty rights, they will not be afforded the same protection as Section 35 rights held by other Indigenous Peoples. These are all eliminated through the wording of the Agreement and instead the legal rules surrounding contract interpretation will apply.

Reliance

The Agreements will set forth a broad number of "reliance" provisions in which the Indigenous group will agree to "indemnify" Canada and the province should any damage come to Canada or the province as a result of stray rights having survived the Agreement. This means that the Indigenous group agree to cover the financial costs to government in the event that they are sued as a result of the Agreement.

Federal and provincial legislation will be passed in order to pass this guarantee along to third parties. Federal legislation may also indemnify the province.

Who can treaty away aboriginal title?

Aboriginal title is a collective interest, which is held in trust by all members of an Indigenous Nation. As a collective interest held by each and every member of an Indigenous Nation, aboriginal title cannot be bargained or treatied away by anything less than the full consent of all the Indigenous Peoples who collectively hold this title. A majority vote (no matter how high the percentage) cannot give one group the ability to extinguish the title and rights of all of the Indigenous Peoples who hold title.

Canada and the province recognize the illegality of negotiating an agreement which purports to extinguish aboriginal title without the full consent of all of the Indigenous Peoples' concerned. The collective nature of aboriginal title means that no Band or group of Bands/communities can treaty for Lands which belong to an entire Nation, or that no group of people within one Nation or Band/community has the right to treaty for the extinguishment of the aboriginal title and rights of those members of their Nation/community who do not give their full consent.

The legal uncertainty of the current process is heightened by the fact that Indigenous citizens are not fully or meaningfully involved or informed in the negotiations of modern land claims agreements. The collective nature of aboriginal title (which means that title is shared by all members of a Nation) creates an area of uncertainty about all treaties entered into without the full consent, knowledge and participation of each and every citizen of the Indigenous Nation. The same legal principle applies: "You cannot give that which you do not own." No vote or ratification process is valid to authorize any group to enter into a treaty without the full consent of their people.

The province has proposed to deal with this area of uncertainty by exacting a legal promise from the Indigenous group that they have the right to enter into the Agreement on behalf of all of their people.

If individual Indigenous people do not agree with the terms of the Agreement and bring law suits in the future (claiming, for example, that parts of their traditional territories were not included in the settlement land, or that the Indigenous government had no right to extinguish their title over their traditional territory) the Indigenous group will agree that they will cover any costs to Canada and B.C. The result of this clause is that Indigenous peoples will be suing other Indigenous peoples and any dollar settlement will come from the Indigenous peoples themselves,not the government.

Compensation for Past Wrongs

Modern land claims agreements will represent the "full and final settlement" between the parties, including of past wrongs. The Indigenous group will agree not to pursue any legal claims against Canada or B.C. with respect to any past wrongs. The proposed wording is that

The Indigenous group will release Canada and British Columbia from any claims that it may have had prior to the Treaty regarding any interference or infringement of the Indigenous group’s Section 35 rights, and any claims under Canada’s "specific claims" policy.

The Supreme Court of Canada, in Delgamuukw, stated that aboriginal title has an economic component and that government will be liable to provide compensation in the event of an abrogation or breach of aboriginal title. This clause would preclude the Indigenous group from bringing any legal actions relating to compensation for the value of the lands and resources taken from their territories. Canada and the province will not have to pay compensation for their past extraction of resources (which is in the billions of dollars for most areas), or the spoilage of habitat, lands and resources which they have been responsible for. All past claims for compensation, and any future claims for compensation, are all reduced into the terms of the Agreement.

Breach

Modern land claims agreements will contain language in which all parties agree not to challenge the "validity or enforceability" of the Agreement. This means that if the Indigenous group in the future do not think that the Agreement was a fair deal, they have agreed not to go to Court to challenge it.

Certainty language will also require that the parties agree that if one or more parties breaches the agreement and do not keep the promises they made under the Agreement, the other Parties must keep their promises.

A breach of the Treaty by any Party will not relieve any other Party from its obligations under the Treaty.

Indigenous Peoples who have entered into treaties with Canada share the common complaint that Canada has steadfastly refused to honour the terms of the treaty or the promises it has made. Canada maintains that Indigenous Peoples have ceded their aboriginal title through treaties (and therefore that Crown title is absolute over those lands) while not honouring the promises which it made. This clause suggests that the Indigenous group may be forced to honour their agreements (ceding aboriginal title and rights to all areas not included under the Agreement) if Canada and B.C. do not honour the obligations they made. For example, if B.C. decides that it cannot afford to make the payments required under the treaty, or if it minimizes the co-management agreement provisions of the agreement, the Indigenous group will not get their lands and rights back.

Summary

The net impact of the "certainty" provisions sought by Canada and B.C. will be to create a double standard with regard to title and interests in the land. Canada, the province, and third parties have their rights and interests recognized and protected. These rights are not defined or in any way limited by the Agreement. The Indigenous group, on the other hand, have all of their rights reduced to the written word of the Agreement.

These certainty provisions are far more restrictive than any of the "extinguishment language" which has been used in other modern land claims agreements to date.

UBCIC is a NGO in Special Consultative Status with the Economic and Social Council of the United Nations.